0! 


iluii  trial  Settlement 

nf  Snternattnual  disputes 


(She  Itorosttg  of  a -permanent 
SFrtbmtal 

bg 

Ernest  £fga 

Professor  nf  tt|c  Sniuersttg.  (Counselor  of  tl;e  Court  nf  Appeals  of 
Brussels,  Member  nf  tfje  Permanent  Court  of 
Arbitration 

NOVEMBER,  1910,  No.  2 

(With  Supplement) 


Published  Quarterly  by  American  Society  for  Judicial  Settlement 
of  International  Disputes. 


Eattiranre,  U.  B.  A. 

KZ 

Entered  as  sei  4850 

at  the  Postoffici  inoe 
Act  of  July  16.  •JOOO 

no.2 


uly  11.  1910, 
d.,  under  the 


©fj?  NmsBftg  of  o Permanent 
tribunal 


$g  Eritfst  $vTgs 


There  is  in  Latin  literature  an  admirable 
fragment,  which  played  its  part  in  the  Middle 
Ages,  and  which  has  exercised  a constant  and 
beneficial  influence  upon  the  thoughtful.  It  is 
the  dream  of  Publius  Aemilianus  Scipio,  the 
younger.  In  it  Marcus  Tullius  Cicero  shows 
in  highly  poetical  terms  the  majestic  mission 
of  law  and  politics,  and  the  important  role  in 
the  development  of  humanity  played  by  the 
groups  and  communities — the  ancient  city 


3 


states — formed  under  the  influence  of  laws. 
He  was  inspired  by  the  theories  of  Plato  and 
Aristotle,  but  was  not  satisfied  merely  to 
translate  and  copy.  To  Greek  ideas  he  added 
the  lessons  taught  by  experience.  He  recalled 
the  illustrious  past  of  Rome;  he  showed  him- 
self conscious  of  the  glory  which  she  was 
destined  to  acquire  in  future  through  her  con- 
quest of  the  world. 

A Roman  could  not,  however,  form  an  idea 
of  all  the  progress  that  humanity  was  destined 
to  make  in  the  domain  of  political  organiza- 
tion. He  grasped  the  idea  of  the  vast  single 
political  community,  but  beyond  that  republic 
or  that  empire  which  should  unite  under  its 
laws  so  many  peoples  and  so  many  countries, 
he  did  not,  he  could  not  admit  the  peaceful 
existence  of  other  republics,  kingdoms  and 
empires  having  in  the  eye  of  the  law  a situa- 
tion like  that  of  Rome.  It  was  impossible  for 
him  to  rise  to  the  concept  of  a family  of 
nations,  of  a society  of  states,  developing 
freely  and  at  the  same  time  fulfilling  the  obli- 
gations due  to  equals  in  their  relations  with 


4 


other  nations.  The  Roman  peace,  pax  romana, 
extended  its  reign  only  over  those  peoples  who 
recognized  the  supremacy  of  the  Eternal  City. 
It  stopped  at  the  frontiers ; beyond  them  per- 
petual war  was  waged  against  those  who  were 
disdainfully  called  Barbarians. 

Centuries  passed.  A long  night,  sad  and 
hopeless,  extinguished  the  light  of  an  antique 
civilization.  But  little  by  little  light  again 
began  to  shine,  and  humanity  took  up  the  task 
of  reconstructing,  under  new  forms,  political 
societies.  Going  further  than  the  ancient 
ideals,  surpassing  what  had  been  accomplished 
by  Greece  and  Rome,  the  cities,  seigniories 
and  kingdoms  of  the  Middle  Ages  adopted 
gradually  the  idea  of  an  international  society, 
of  a res  publica  Christiana,  of  a res  Christiana, 
to  employ  terms  used  in  that  remote  epoch. 
Constituted  at  first  only  in  certain  regions  of 
the  European  continent,  this  society  gradually 
extended  the  area  of  its  action  until  it  em- 
braced the  whole  of  Europe.  At  the  end  of 
the  XVXIIth  century  it  took  into  its  bosom  the 
United  States  of  America,  which  had  bravely 


5 


won  their  independence.  Still  a little  later, 
at  the  beginning  of  the  XIXth  century,  it 
gathered  in  the  numerous  states  of  Central  and 
South  America.  At  that  time  it  seemed  in- 
clined to  confine  itself  to  Christian  peoples; 
but  in  the  middle  of  the  XIXth  century  it  con- 
ferred upon  Turkey  the  benefit  of  membership, 
and  in  the  latter  years  of  the  same  century,  no 
longer  paying  attention  to  differences  of  cult 
and  religion,  it  opened  its  diplomatic  confer- 
ences and  congresses  to  all  peoples  and  all 
races  showing  themselves  disposed  to  observe 
the  practices  of  modern  civilization. 

Statistics  furnish  curious  indications.  When 
first  formed — that  is  to  say,  during  the  Xllth 
and  XHIth  centuries  of  our  era — this  inter- 
national society  numbered  but  a few  millions. 
At  the  end  of  the  XVth  century  the  entire 
population  of  Europe  numbered  about  fifty 
millions  of  people.  In  1787 — that  is  to  say,  at 
about  the  time  the  United  States  made  their 
accession,  with  approximately  four  millions  of 
inhabitants — the  entire  European  association 
did  not  exceed  one  hundred  and  forty-four 


6 


millions  of  human  beings.  And  we  are  separ- 
ated from  that  period  by  only  a century  and  a 
quarter ! 

In  the  course  of  modern  civilization  there 
have  been  events  which,  at  first  sight,  appear 
as  a manifestation  of  separatism  and  contrary 
to  the  formation  of  a universal  international 
society.  Such  a case  was  the  organization 
of  a purely  European  system.  In  1670  there 
appeared  in  London  a very  interesting  work, 
entitled  “A  General  Table  of  Europe,  Repre- 
senting the  Present  and  the  Future  State 
Thereof,  from  the  Prophecies  of  the  Three 
Late  German  Prophets,  Kotterus,  Christina 
and  Drabicius.”  It  was  attributed  to  the 
illustrious  Johann  Amos  Comenius  and  con- 
tains the  warmest  praise  of  the  Europe  of  that 
day,  terming  it  “the  most  flourishing  part  of 
the  universe,  for  empire,  religion  and  learning, 
arts  and  arms,  and  all  the  high  distinction  of 
human  kind.”  * * * “As  for  the  arts  and 

sciences,  inventions  and  improvements,  she 
still  carries  it  higher  from  all  the  rest,  and  they 
have  now  their  reign  and  empire  only  in  her 


7 


dominions,  and  that  more  glorious  than  ever. 
Asia,  from  whence  they  first  came,  must  call 
her  mistress,  and  haughty  China  herself  sub- 
mits now  to  be  her  disciple.”  The  solemn 
treaties  of  peace  entered  into  at  the  beginning 
of  the  XVIIIth  century  dealt  with  the  safety, 
equilibrium  and  general  interest  of  Europe. 
At  the  same  period  Charles-Irenee  Castel  de 
Saint-Pierre  tried  to  organize  the  “Corps 
europeen.”  About  the  middle  of  the  century 
Jean-Jacques  Rousseau  undertook  to  set  forth 
the  causes  which  gave  birth  to  the  “Societe 
des  peuples  de  l’Europe.”  He  asserted  that 
Europe  was  a real  society  which  had  “its 
religion,  its  manners,  its  customs,  and  even  its 
laws,  from  which  none  of  the  people  who  com- 
pose it  can  swerve  without  at  once  causing 
disturbances.” 

The  New  World,  too,  at  certain  periods  of 
its  history,  has  seemed  to  favor  a policy  of 
isolation.  The  doctrine  which  President  James 
Monroe  proclaimed  in  his  message  of  1823  has 
been  long  thus  interpreted.  Instance  also  the 
Pan-American  Conferences  of  the  end  of  the 


8 


XIXth  century  and  the  beginning  of  the  XXth 
century. 

Even  now  there  is  sometimes  heard  the 
slogan  of  “Asia  for  the  Asiatics”  or  “Africa  for 
the  Africans.” 

Is  it  necessary  to  suggest  that  the  magnifi- 
cent idea  of  a universal  society  of  states  is  far 
superior  to  all  movements  which  would  con- 
stitute associations  restricted  to  a single  con- 
tinent? Happily  the  society  of  states  is  learn- 
ing to  foregather.  One  of  these  great  re- 
unions, the  First  Hague  Conference  (1899), 
was  attended  by  the  delegates  of  26  Powers. 
The  Second  Hague  Conference  (1907)  was 
composed  of  delegates  from  43  Powers.  A 
most  important  meeting,  the  Naval  Conference 
of  London  of  1908  and  1909,  brought  together 
the  representatives  of  ten  Maritime  Powers, 
among  which  were  the  United  States,  an 
American  Power,  and  Japan,  an  Asiatic 
Power. 

Is  it  necessary  to  add  that  even  in  our  days 
the  Society  of  States  is  still  without  complete 
regulations?  Nevertheless  it  has  come  into 


9 


being,  and  is  active.  It  unites  its  members 
by  manifold  treaties,  conventions,  agreements. 
It  is  being  perfected  every  day.  Many  of  its 
interests — commerce,  industry,  railroads  and 
maritime  routes — are  secured  and  guaranteed. 
Measures  are  taken  for  the  settlement  of  dif- 
ferences by  amicable  means.  Uniform  regu- 
lations control  the  conduct  of  war,  that  last 
vestige  of  the  strange  ideas  revered  in  the 
earlier  ages  of  mankind,  and  according  to 
which  force  decides  the  justice  of  a cause. 

For  several  centuries,  at  successive  stages  of 
civilization,  thinkers,  philosophers  and  jurists 
have  raised  their  voices  for,  and  even  pro- 
claimed the  necessity  of,  some  better  means 
of  assuring  the  existence  of  the  Society  of 
Nations.  This  was  done  by  Francois  de 
Vitoria  in  the  first  half  of  the  XVI  century, 
by  Francesco  Suarez  at  the  beginning  of  the 
century;  by  Hugo  Grotius  in  his  immortal 
work,  “De  jure  belli  ac  pads,”  published  in 
1625.  About  the  middle  of  the  XVIIIth  cen- 
tury these  ideas  took  a more  definite  shape, 
and  Christian  von  Wolff  taught  that  nature 


10 


itself  formed  a sort  of  society  among  nations. 
“Ipsa  natura  societatem  quamdam  inter  gentes 
instituit.”  He  asserted  that  this  society  ap- 
peared to  be  bound  by  a quasi-convention: 
“Ut  quasi  pacto  contracta  videtur.”  It  is  “the 
great  civil  society,  Civitas  maxima,  of  which 
all  nations,  and  in  a certain  way  the  citizens 
also,  are  members.” 

He  who  speaks  of  society  speaks  of  law: 
Ubi  societas,  ibi  jus.  Obligations  arise,  rights 
spring  up.  But  the  fundamental  problem  is  to 
induce  the  members  of  the  society  to  fulfill 
their  duties  and  to  furnish  them  with  the 
means  of  vindicating  their  rights.  That  brute 
force  cannot  serve  to  adjust  differences,  that 
the  horrible  evils  of  war  can  never  be  offset  by 
the  momentary  triumph  of  the  victor,  that  the 
fratricidal  struggles  of  the  peoples  retard,  if 
they  do  not  arrest  for  long  periods  of  time,  the 
majestic  march  of  civilization — this  conviction 
has  for  centuries  been  shared  by  the  most 
generous  minds.  But  the  problem  appeared 
surrounded  by  unsurmountable  difficulties. 

Two  solutions  were  possible,  arbitration  and 


ii 


a judicial  tribunal  regularly  composed.  Arbi- 
tration is  a decision  rendered  by  men  chosen 
by  both  sides  to  settle  differences.  The  per- 
manent judicial  tribunal  is  a body  of  compe- 
tent men  invested  with  jurisdiction  by  common 
consent  and  performing  its  duties  by  virtue  of 
its  mandate  to  declare  the  law.  From  the 
standpoint  of  pure  reason,  the  tribunal  must 
prevail  over  arbitration.  The  application  of 
the  legal  rule,  the  eventual  enquiry  into  the 
principles  of  equity,  the  interpretation  of  texts 
formulated  and  decreed,  does  not  all  this  con- 
stitute, in  the  words  of  Marcus  Tullius  Cicero, 
a work  royal  above  all  other?  “Nihil  esse  tarn 
regale,”  wrote  the  illustrious  Roman,  “quam 
explanationem  aequitatis  in  qua  juris  erat 
interpretation 

From  the  standpoint  of  history,  even  within 
the  political  community,  arbitration  is  anterior 
to  judicial  organization,  properly  so  called;  in 
other  words,  arbitration  precedes  permanent 
tribunals.  Among  a great  number  of  peoples 
there  existed  for  a long  time  the  idea  of  the  re- 
ligious origin  of  law,  of  the  necessity  of  mag- 


12 


ical  practices  to  enforce  it,  and  of  the  judicial 
oracle.  On  the  other  hand,  the  decision  of  dif- 
ferences and  conflicts  was  not  in  ancient  times 
confided  to  magistrates  holding  their  office  by- 
public  authority,  but  to  arbitrators  chosen  by 
the  parties. 

In  municipal  law  arbitration  has  finally 
given  way  to  a stable  organization,  and  has 
become  the  exception,  whereas  the  regular 
tribunal  has  become  the  rule.  Nevertheless, 
the  right  to  have  recourse  to  arbitrators  has 
been  proclaimed  in  most  countries,  although 
arbitration  has  often  changed  its  character,  and 
in  order  to  be  given  effect  the  arbitral  award 
must  be  accompanied  by  an  order  of  execution 
granted  by  the  ordinary  judge.  Above  all  there 
has  been  great  diversity  of  practice.  Thus,  in  the 
Italian  Republics  of  the  Middle  Ages,  arbitra- 
tion gained  the  upper  hand  at  certain  periods, 
and  even  became  obligatory  to  the  point  that 
recourse  to  the  ordinary  judge  was  sometimes 
forbidden,  or  even  to  the  point  of  the  aboli- 
tion of  the  ordinary  jurisdiction.  Again,  in 
France,  during  the  revolution  at  the  end  of 


13 


the  XVIIIth  century,  the  National  Convention 
substituted  for  regular  judges  public  arbi- 
trators chosen  by  electoral  assemblies  and  who 
assumed  jurisdiction  of  cases  which  had  not 
been  settled  by  private  arbitrators  or  by  jus- 
tices of  the  peace.  At  various  epochs  and  in 
more  than  one  country  has  there  developed 
distrust  of  the  judiciary,  which  was  reproached 
with  having  become  the  pliable  tool  of  tyranny 
and  despotism.  Sometimes,  too,  religious  senti- 
ment inspired  actual  contempt  of  the  stable 
organization.  To  the  judge  was  preferred  the 
minister  of  religion,  as  was  the  case  in  Massa- 
chusetts, where  two  centuries  and  a half  ago 
the  laws  of  Moses  were  accepted  as  the  basis 
of  the  social  organization,  and  in  case  of  doubt, 
their  interpretation  was  left  to  the  Puri- 
tan ministers.  To  this  sentiment  was  allied 
the  disfavor  attached  to  all  men  who  were  stu- 
dents or  practitioners  of  law.  The  “mer- 
cenary” lawyer — that  is  to  say,  one  who  was 
paid  for  his  services — was  formerly  excluded 
from  the  Virginia  Assembly,  and  the  same  re- 
buke was  administered  in  other  colonies. 


14 


When  the  Society  of  Nations  was  first  form- 
ing, that  is  to  say,  in  the  Xllth  and 
Xlllth  centuries  of  our  era,  arbitration 
was  used  as  a means  of  settling  differences 
arising  between  republics,  princes  and  kings. 
Many  of  the  matters  so  settled  were  not  ques- 
tions of  international  law  as  that  term  is  un- 
derstood in  our  day ; often,  in  fact,  public  and 
private  interests  were  very  closely  allied  or 
were  even  confounded  with  each  other.  Yet 
the  cases  were  frequent  where  the  disputants 
called  upon  a sovereign,  a jurist  or  a high 
ecclesiastic  for  a decision,  or  appealed  to  a uni- 
versity professor  or  a court  of  justice,  sitting, 
it  should  be  remarked,  as  an  arbitral  commis- 
sion and  not  as  a tribunal  of  judges  properly 
so-called. 

Recourse  to  arbitration  was  advocated  by 
writers  also.  At  the  beginning  of  the  XVIth 
century,  to  cite  but  a single  instance,  Erasmus 
recommended  to  the  rulers,  in  the  Institutio 
Principis,  never  to  engage  in  warfare  with  a 
light  heart  and  always  to  propose  arbitration 
before  resorting  to  arms. 


15 


It  must  be  confessed,  however,  that  arbitra- 
tion has  always  been  and  still  is  attended  with 
serious  defects.  In  the  history  of  the  law 
among  all  peoples,  it  is  quite  clear  that  the  diffi- 
culty from  the  beginning  has  always  been  to 
get  the  adversary  before  him  who  was  to  judge 
the  case.  Arbitration,  from  this  point  of  view, 
naturally  offers  much  greater  difficulties  than 
a judicial  tribunal,  no  matter  how  imperfect 
the  organization  of  the  latter.  Then,  too,  the 
power  of  the  arbitrator  is  very  questionable 
and  very  much  questioned.  In  classical  Roman 
law  the  contravening  party  was  exposed  to  a 
demand  for  the  payment  of  the  penalty  fixed 
by  the  compromise  only,  or  to  a demand 
for  damages.  It  is  not  until  the  time  of 
Justinian  that  an  effect  analogous  to  that  of 
judgment  is  accorded  to  the  arbitral  award 
when  expressly  accepted  by  the  parties.  The 
Italian  jurists  of  the  Middle  Ages  denied  to 
the  arbitrators  real  jurisdiction,  juris  dictio.  In 
fact,  jurisdiction  emanates  from  sovereignty; 
it  is  the  dual  right  of  hearing  and  terminating  a 
suit  by  judgment.  The  Italian  jurists  accorded 


16 


to  arbitrators  simply  the  notio,  examination  in 
justice,  and  stated  that  after  enquiry  they 
could  render  a definitio,  a decision,  but  that 
they  had  neither  coercitio — that  is  to  say,  the 
right  to  impose  penalties — nor  executio,  which 
consists  in  the  use  of  public  force  for  the 
execution  of  a judgment. 

Another  cause  of  weakness  in  arbitration 
was  found  and  is  still  found  in  the  difficulty 
of  correcting  awards  open  to  suspicion  or 
which  manifestly  bear  within  themselves  the 
proof  of  error.  Arbitration  as  correctly  con- 
ceived does  not  admit  of  appeal.  The  only 
remedy  lies  in  again  appealing  to  the  same  ar- 
bitrators. In  order  to  justify  appeal  from  an 
arbitral  award  to  a regular  court  of  justice,  it 
is  necessary  to  modify  the  character  of  the 
award  by  requiring — as  is  provided  in  some  in- 
stances by  legislative  act — that  it  be  given 
executory  force  by  a tribunal  or  a magistrate, 
in  which  case  it  assumes  the  nature  and  char- 
acter of  a judgment. 

These  considerations  explain  why,  in  ad- 
dition to  and  alongside  of  arbitration  and  the 


17 


plans  for  the  judicial  organization  of  the  So- 
ciety of  States  by  means  of  arbitration,  a vast 
movement  was  started  in  favor  of  a judicial 
system — that  is  to  say,  of  a court  of  justice 
which  would  be  accessible  to  all  the  states  and 
into  which  disputants  may  be  haled. 

Arbitration  and  Court  of  Justice  have  each 
had  their  defenders.  Arbitration  has  won  its 
way  on  the  international  field;  for  not  only 
have  the  treaties  which  provided  for  the  sub- 
mission of  future  disputes  to  arbitration  been 
numerous,  but  numerous  also  have  been  the 
cases  to  which  arbitration  has  been  actually 
applied.  Furthermore,  on  two  solemn  occa- 
sions there  was  voted  at  The  Hague  the  or- 
ganization of  a permanent  court  of  arbitration, 
first  by  26  states  and  second  by  43  states,  and 
this  permanent  court  is  in  active  and  useful 
being. 

As  early  as  1623,  in  the  Nouveau  Cynee,  a 
French  writer,  Emeric  Cruce,  set  forth  the  ad- 
vantages which  would  be  derived  from  the 
establishment  at  Venice  of  a great  council,  in 
which  all  the  princes  and  all  the  great  repub- 


18 


lies  should  be  perpetually  represented  by  their 
ambassadors,  in  order  that  the  differences 
which  might  arise  could  be  adjusted  by  the  en- 
tire assembly.  In  1660  a German  Prince,  the 
Landgrave  Ernest  of  Hesse-Rheinfels,  drafted 
a project  for  the  establishment  of  a tribunal  of 
the  Society  of  Catholic  Sovereigns,  which  was 
to  sit  at  Luzerne.  Among  the  writings  of  Wil- 
liam Penn,  published  in  1693,  there  is  one  en- 
titled “Essay  toward  the  Present  and  Future 
Peace  of  Europe  by  the  establishment  of  an 
European  Dyet,  Parliament  or  Estates.”  In  it 
he  discusses  the  question  of  a European  Diet 
which  should  have  power  to  legislate,  deliber- 
ate and  adjudge. 

The  first  great  organization  was  created  by 
article  9 of  the  Articles  of  Confederation  and 
Union  voted  by  the  Congress  of  the  United 
States  on  the  9th  of  July,  1778,  which  provides 
a system  of  arbitration  for  the  States  of  the 
Union.  James  Brown  Scott  has  traced  the 
history  of  the  application  of  this  constitutional 
provision.* 

*The  Hague  Peace  Conferences  of  1899  and  1907,  Vol.  I,  pp.  460-464. 


19 


The  Congress  of  Panama  of  1826,  in  which 
Mexico,  Central  America,  Colombia  and  Peru 
were  represented,  declared  for  the  amicable 
composition  of  all  differences  and,  eventually, 
their  determination  by  a general  assembly  of 
the  plenipotentiaries,  which  was  to  meet  every 
two  years. 

As  we  have  seen,  the  Permanent  Court  of 
Arbitration  was  organized  in  Europe  in  1899 
by  the  first  Hague  Conference.  It  was,  how- 
ever, open  to  the  criticism  of  being  nothing 
more  than  a list  of  arbitrators.  Yet  it  has  sat 
in  judgment  on  several  occasions  and  rendered 
important  services  in  the  cause  of  peace.  In 
1907  the  court  was  again  approved  and  its  do- 
main considerably  extended,  since,  as  we  have 
already  said,  43  states  were  represented  at  the 
Second  Conference  at  The  Hague. 

The  struggle  for  the  establishment  of  a court 
of  justice,  or  a real  tribunal  composed  of  judges 
by  profession,  has  not,  however,  been  aban- 
doned. 

In  1899,  at  the  First  Hague  Conference,  the 
Government  of  the  United  States  of  America 


20 


made  a determined  if  vain  effort  to  secure  its 
establishment. 

In  the  domain  of  pure  science  various  proj- 
ects were  drafted  in  the  course  of  the  twen- 
tieth century,  in  which  the  judicial  power  of 
the  society  of  nations  was  described,  its  at- 
tributes clearly  defined  and  measures  con- 
sidered which  would  assure  the  permanency 
and  stability  of  its  organization.  Among  the 
authors  of  these  projects  may  be  mentioned 
James  Lorimer,  of  Edinburgh,  and  Johann 
Caspar  Bluntschli,  of  Heidelberg.  In  the 
field  of  practice  it  was  the  delegation  of  the 
United  States  to  the  First  Hague  Conference 
(i8gg)  which  rendered  the  greatest  assist- 
ance to  the  cause.  It  proposed  the  negotia- 
tion of  a general  treaty  by  virtue  of  which  a 
tribunal  should  be  formed,  whose  members, 
competent  in  matters  of  international  law, 
should  be  appointed  by  the  signatory  states, 
and  in  which  each  state  should  have  a repre- 
sentative upon  the  tribunal.  This  project  was 
not  adopted,  but  in  igo7  a more  forceful  at- 
tempt was  made.  The  delegation  of  the 


21 


United  States  had  received  positive  instruc- 
tions. The  Secretary  of  State,  the  eminent 
Elihu  Root,  pointed  out  in  special  instructions 
the  defects  of  arbitration.  He  expressed  the 
opinion  that  it  was  possible  to  “apprehend  that 
the  arbitrations  might  not  be  impartial,”  and 
added:  “It  has  been  a very  general  practice  of 
arbitrators  to  act  not  as  judges  deciding  ques- 
tions of  fact  and  law  upon  the  record  before 
them  under  a sense  of  judicial  responsibility, 
but  as  negotiators  effecting  settlements  of  the 
questions  brought  before  them  in  accordance 
with  the  traditions  and  usages  and  subject  to 
all  the  considerations  and  influences  which  af- 
fect diplomatic  agents.”*  The  project  of  the 
court  was  based  upon  these  general  lines  which 
the  American  delegates,  Joseph  H.  Choate  and 
James  Brown  Scott,  eloquently  advocated  and 
defended  in  the  Conference.  “The  court  pro- 
posed by  the  American  Delegation  was  to  be  a 
court  in  the  technical  sense  of  the  word,  com- 
posed of  judges  who  had  had  experience  in  the 
practice  and  interpretation  of  law,  and  there- 

* Scott’s  Hague  Conferences  of  1899  and  1907,  Vol.  I,  p.  440. 


22 


fore  were  competent  to  decide  difficulties  pre- 
sented to  them  ‘by  judicial  methods  and  under 
a sense  of  judicial  responsibility.’  The  judges 
were  not  to  be  selected  from  any  group  of 
countries,  but  chosen  in  such  a way  that  the 
different  systems  of  law  and  procedure,  as 
well  as  the  principal  languages  of  the  world, 
might  be  fairly  represented. 

The  proposed  court,  however,  was  not  in- 
tended to  supplant  the  permanent  court  of  ar- 
bitration of  1899.”*  Although  the  court  was 
adopted  in  principle,  the  project  as  such  was 
not  voted.  Its  failure  was  due  to  the  fact  that 
an  agreement  could  not  be  reached  upon  the 
method  of  appointing  the  judges  and  upon  the 
representation  to  be  accorded  to  each  of  the 
states  represented  at  the  Conference.  Never- 
theless, so  many  substantial  reasons  were  ad- 
vanced in  the  discussion  that  the  initiative  of 
the  United  States  was  attended  with  the  most 
felicitous  results ; for  in  law  as  well  as  in  logic 
the  cause  of  a real  court  of  justice — that  is  to 
say,  of  a technical  court — was  won.  Moreover, 

*Scott’s  Hague  Conferences  of  1899  and  1907,  Vol.  I,  p.]441. 


23 


a compensation  was  obtained  by  the  adoption  of 
a project  or  convention  creating  an  interna- 
tional prize  court.  A correct  estimate  was 
placed  upon  it  by  James  Brown  Scott,  who 
says:  “Its  adoption  by  the  conference  was  a 
great  step  in  advance,  although  it  should  fail  of 
ratification.  It  is  the  first  step  toward  the 
development  of  an  international  judicial  sys- 
tem.”* 

The  jurisdiction  of  the  prize  court  may,  it 
should  not  be  forgotten,  be  enlarged  without 
serious  difficulties;  it  requires  only  the  will  of 
the  states  creating  it.  It  should  be  re- 
called in  this  connection  that  in  an  article  in 
this  series,  the  eminent  Simeon  E.  Baldwin  has 
already  stated  that  “in  1908  the  Central  Amer- 
ican States  inaugurated  the  Central  American 
Court  of  Justice,  with  a permanent  seat  at 
Cartago.  By  treaty  the  five  states  are  bound 
to  submit  to  the  judgment  of  this  tribunal  all 
controversies  or  questions  among  them  of 
whatsoever  nature.” 

*Scott’s  Hague  Conferences,  1899  and  1907,  Vol.  I,  p.  465. 


24 


These  facts  and  occurrences  are  full  of  com- 
fort. The  attempts  have  not  been  vain.  The 
efforts  have  not  been  useless.  The  realization 
of  the  project  has  begun.  It  is  only  necessary 
to  persevere ; the  triumph  is  assured.  Arbitra- 
tion will  not  cease  to  be  resorted  to.  It  should 
not  disappear.  Recourse  to  it  will  be  free,  but 
alongside  of  the  instrumentality  furnished  by 
the  existing  permanent  court,  international  so- 
ciety will  possess  a perfected  instrumentality, 
a real  judicial  tribunal  composed  of  jurists 
versed  in  international  law,  which  will  derive 
from  the  very  fact  of  its  creation  and  from  its 
raison  d’etre,  its  jurisdiction  and  its  mission  to 
declare  the  law. 

Arbitration  is  beset  with  various  difficul- 
ties. There  is  the  difficulty  of  bringing  the 
parties  in  controversy  before  the  arbitrator; 
the  tendency  on  the  part  of  the  arbitrator,  alike 
in  private  as  well  as  in  international  law,  to 
consider  himself  obliged  to  deal  tenderly  with 
the  interests  of  the  parties  by  whom  he  was 
designated ; the  regrettable  tendency  to  dispose 


25 


of  the  litigation  by  means  of  a compromise,  to 
act  as  a diplomat  and  not  as  a judge;  the  im- 
possibility of  creating  a system  of  jurispru- 
dence based  upon  an  unbroken  series  of  con- 
sistent decisions,  and  the  consequent  difficulty 
of  developing  law  by  successive  decisions,  and 
the  insuperable  obstacles  which  almost  invari- 
ably stand  in  the  way  of  revising  sentences 
vitiated  by  essential  error  or  other  substantial 
defects.  On  all  these  points  the  experience  of 
recent  years  has  been  conclusive.  The  sole 
remedy  is  the  creation  of  a technical  tribunal 
in  which  jurists  will  take  their  places,  where 
the  same  line  of  judgment  will  necessarily  con- 
trol and  decide  similar  cases,  thus  enriching 
the  jurisprudence  of  international  law,  and 
where  an  appeal  will  correct  errors  of  judg- 
ment which  may  have  crept  in  the  judgment 
of  first  instance. 

In  a word,  the  outcome  of  all  these  efforts  is 
free  from  doubt.  In  the  domain  of  private  law, 
organized  justice  succeeded  arbitration,  and  so 
it  must  in  the  domain  of  international  law.  As 


26 


a European  lawyer,  passionately  devoted  to  the 
study  of  the  law  of  nations,  I address  myself  to 
the  citizens  of  the  United  States  and  implore 
them  to  continue  the  struggle  in  favor  of  a 
technical  international  court.  Few  countries 
have  rendered  to  the  law  of  nations  as  great 
services  as  the  United  States  or  exercised  such 
a beneficent  influence:  the  movement  in  favor 
of  arbitration,  the  recognition  of  the  rights  of 
neutrals,  the  plea  for  inviolability  of  private 
property  in  maritime  warfare,  amelioration  of 
the  practices  of  war,  to  mention  only  a few 
instances.  Another  service  rendered  by  the 
United  States  is  not  sufficiently  appreciated, 
namely,  the  promulgation  by  President  Lincoln 
of  “The  Instructions  for  the  Government  of 
Armies  of  the  United  States  in  the  Field,” 
drawn  up  by  Francis  Lieber.  They  have  exer- 
cised a powerful  influence  upon  the  entire 
v/orld,  for  they  were  the  basis  of  the  work  of 
the  Conference  of  Brussels  in  1874,  and  through 
this  conference  became  the  fundamental  text 
of  the  conventions  concerning  the  laws  of  war 


27 


adopted  by  the  Hague  Conferences  of  1899  and 
1907.  May  the  United  States  persevere  in  its 
endeavor  to  organize  a truly  international 
tribunal,  for  in  so  doing  it  will  acquire  a new 
claim  to  the  gratitude  of  the  civilized  world. 


28 


American  &nrirtg  fnr  3ttMrial  grttlcmcnl  nf 
Slntrrnutixmal  Disputes. 

©ffirrra 

Honorary  President,  William  Howard  Taft. 
President,  James  Brown  Scott,  Washington,  D.  C. 
Vice-President,  John  Hays  Hammond,  Washington,  D.  C. 
Secretary,  Theodore  Marburg,  Baltimore,  Md. 

Treasurer,  J.  G.  Schmidlapp,  Cincinnati,  O. 


Life  membership,  $100;  Sustaining  membership,  $10  a year; 
Annual  membership,  $i  a year. 

Remit  to  treasurer,  J.  G.  Schmidlapp,  Cincinnati,  U.  S.  A. 
Address  inquiries  to  secretary,  Theodore  Marburg,  Baltimore, 
U.  S.  A. 

The  proceedings  of  the  “Judicial  Settlement”  Conference  at  Wash- 
ington, December  15-17,  1910,  will  be  printed  in  English,  French, 
German  and  Spanish.  Each  member  of  the  Society  will  be  entitled 
to  one  copy.  Non-members  may  procure  them  by  remitting  the 
price.  One  Dollar,  to 

TUNSTALL  SMITH,  Assistant  Secretary , 

The  Preston,  Baltimore,  U.  S.  A. 


American  H'nmltj  for  Suhtrial  ©eltlrmrttt  nf 
3nternatixmal  DicpiUrs. 

Abuiaorij  (Snunril 
Lyman  Abbott,  New  York. 

Edwin  A.  Alderman,  Virginia. 

James  B.  Angell,  Michigan. 

Simeon  E.  Baldwin,  Connecticut. 

Richard  Bartholdt,  Missouri. 

Alexander  Graham  Bell,  Washington,  D.  C. 

R.  L.  Borden,  Ottawa,  Out. 

Theodore  E.  Burton,  Ohio. 

Joaquin  D.  Casasus,  Mexico  City,  Mexico. 

George  E.  Chamberlain,  Oregon. 

Winston  Churchill,  New  Hampshire. 

George  B.  Cutten,  Wolfville,  N.  S. 

William  R.  Day,  Ohio. 

Jacob  M.  Dickinson.  Washington,  D.  C. 

Andrew  S.  Draper,  New  York. 

Charles  W.  Eliot,  Massachusetts. 

Charles  E.  Fenner,  Louisiana. 

William  Dudley  Foulke,  Indiana. 

James  Cardinal  Gibbons,  Maryland. 

George  Gray,  Delaware. 

Charles  Noble  Gregory,  Iowa. 

Peter  S.  Grosscup,  Illinois. 

Joseph  F.  Johnston,  Alabama. 

David  Starr  Jordan,  California. 

Harry  Pratt  Judson,  Illinois. 

William  H.  King,  Utah. 

George  W.  Kirchwey,  New  York. 

Philander  C.  Knox,  Washington,  D.  C. 

- Charles  F.  Libby,  Maine. 

Francis  B.  Loomis,  Washington,  D.  C. 

Horace  H.  Lurton.  Tennessee. 

R.  McBride,  Victoria,  B.  C. 

Pablo  Macedo,  Mexico  City,  Mexico. 

Charles  Marcil,  Ottawa,  Ont. 

Sidney  E.  Mezes,  Texas. 

S.  C.  Mitchell,  South  Carolina. 

Francis  G.  Newlands,  Nevada. 

L.  Oppeniieim,  Cambridge,  England. 

Thomas  Nelson  Page,  Washington,  D.  C. 

Walter  H.  Page,  New  York. 

W.  Peterson,  Montreal. 

Sir  Thomas  Raleigh,  London.  England. 

Whitelaw  Reid,  London,  England. 

William  Renwick  Riddell,  Toronto,  Ont. 

Uriah  M.  Rose,  Arkansas. 

A.  C.  Rutherford,  Edmonton,  Alberta. 

W alter  Scott,  Regina,  Saskatchewan. 

Albert  Shaw,  New  York. 

Hoke  Smith,  Georgia. 

Bishop  Robert  Strange,  North  Carolina. 

Sir  Charles  Hibbert  Tupper,  Vancouver,  B.  C. 
George  Turner,  Washington. 

Charles  R.  Van  Hise,  Wisconsin. 

Benjamin  Ide  Wheeler,  California. 

William  Allen  White,  Kansas. 

George  G.  Wilson,  Rhode  Island. 

Prince  de  Cassano,  Italy. 


e 


«d 


■AO 


\ 


it' 


\ 

\ 


S' 


X 


5? 


Cr. 

a 


sauBjqn  AjJSJQAiun  e*nQ 


